1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED: THIS THE 27 th DAY OF JUNE, 2012 BEFORE THE HON BLE MR. JUSTICE AJIT J GUNJAL WRIT PETITION Nos. 38220-221/2010 (GM-RES), BETWEEN: WRIT PETITION No. 4355/2012 (GM-CPC) & WRIT PETITION No. 21499/2010 (GM-CPC) N. Nagaraj, S/o B. Mayigowda, Aged about 55 years, R/at Car Street, Bannur, Mysore District. PETITIONER (common) (By Sri N. Kumar, Adv.) AND: M/s. Motilal Oswal Securities Ltd., Palm Spring Centre, 2 nd Floor, Nest to D-Mart, Link Road, Malad (W), Mumbai, Rep. by Yashaswini Shukia. RESPONDENT (common) (respondent served)
2 Writ Petition Nos. 38220-221/2010 are filed under Articles 226 and 227 of the Constitution of India praying to issue a writ of certiorari quashing the order dated 1.9.2010 passed by the Principal District Judge, Mysore, in Ex.No. 90/2009 at Annexure-C and allow the application dated 30-6-2010 and the order dated 30.10.2010 passed by the Principal District Judge, Mysore in Ex.No. 90/2009 at Annexure-F and allow the application dated 16.9.2010 filed by the petitioner. Writ Petition No. 4355/2012 is filed under Articles 226 and 227 of the Constitution of India praying to issue a writ of certiorari quashing the order dated 13.1.2012 passed by the Principal District Judge, Mysore, in Ex.No. 90/2009 vide Annexure-A and allow the application dated 30.6.2010 filed by the petitioner. Writ Petition No. 21499/2010 is filed under Articles 226 and 227 of the Constitution of India praying to issue a writ of certiorari quashing the order of attachment of movables order dated 24.6.2010 passed by the Principal City and Sessions Judge, Mysore in Ex.No. 90/2009 at Annexure-G. These Writ Petitions coming on for Preliminary Hearing B Group this day, the Court made the following:
3 ORDER All the three writ petitions are disposed of by this common order. 2. The respondents are served and unrepresented. 3. The respondents have obtained an arbitration award on 7.1.2009 before the sole Arbitrator at Chennai. They filed an execution petition before the Principal and Sessions Judge at Mysore and sought for attachment warrant of the movables. 4. The Executing Court issued notice to the petitioner-judgment debtor. The judgment debtor entered appearance and filed objections interalia contending that the Executing Court has no jurisdiction in as much the award, which is sought to be executed, was not transferred from the Chennai Court and the respondents cannot independently initiate execution proceedings before the Mysore Court without seeking transfer from the Chennai Court. The said objections did not merit consideration in the Executing Court. Hence the objections were rejected.
4 5. In so far as the two writ petitions i.e., W.P.No. 21499/2010 and 4355/2012 are concerned, the petitioners have questioned the issue of attachment as well as the arrest warrant. 6. I am of the view that if the first of the writ petitions i.e., W.P.Nos. 38220 and 38221/2010 are disposed of, the question of examining the impugned order in the remaining two writ petitions would be redundant. 7. The learned Counsel for the petitioner judgment debtor submits that under Order XXI Rule 10 of the Code of Civil Procedure, 1908 the decree holder was required to make an application to execute the award before the Chennai Court and thereafter take a Certificate of Transfer and then execute it in the Mysore Court. That having not been done, the execution proceedings are not maintainable. He also further submits that under Section 42 of the Arbitration and Conciliation Act, 1996 (for short hereinafter referred to as the Act ), it is not open for a decree holder to execute
5 the decree in respect of the proceedings, which are situated outside the jurisdiction unless prior permission is obtained. 8. I have perused the papers. 9. Apparently, the award of the Arbitrator is sought to be executed under the Order XXI Rule 10 of the Code of Civil Procedure to deal with the execution of a decree, which would read as under: Order XXI Rule 10: Application for Execution- Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof. 10. A perusal of Rule 10 of the Code of Civil Procedure clearly indicates that if a decree has been sent under the provisions hereinbefore stated contained to another Court then to such Court or to the proper
6 officer thereof. Order XXI Rule 11 Sub-Rule (2) of CPC., would speak about the written application to be made. I am of view that, if a decree obtained is sought to be executed outside the territorial jurisdiction of the Executing Court, it is required to issue a notice of the decree to be executed which should be accompanied by a certified copy of the decree passed by the original Executing Court and thereafter to be transferred to the another Court for execution which is outside the territorial jurisdiction. That having not been done, I am the view, the execution proceedings are not maintainable. Even otherwise Section 42 of the Act envisages that the Court, which has passed an award alone shall have the jurisdiction over the arbitral proceedings and all subsequent applications are required to be made only before that Court. An application for execution proceedings in the first place is required to be made at Chennai and thereafter the Chennai Court would issue a Certificate of Transfer of the decree to be executed outside its territorial jurisdiction.
7 11. A perusal of the proceeding does not disclose that such a certificate has been issued. Apparently, a decree cannot be executed unless and until the first Court transfers a decree to the Court at a place where the property is situated. Having said so, I am of the view that, the execution proceedings themselves are not maintainable. 12. It is also brought to my notice by the learned Counsel for the petitioner that the petitioner has questioned the arbitral award under Section 34 of the Act before the Chennai Court and the said proceedings as yet are not completed. Having said so, I am of the view that, the petitioner is entitled to succeed and the petitions are allowed. The impugned order holding that the execution proceedings are maintainable is set aside and the execution proceedings stand dismissed. 13. In so far as the remaining two writ petitions i.e., W.P.Nos. 4355/2012 and 21499/2010 are concerned, once the executing proceedings themselves are dismissed as not maintainable, the question of
8 examining the impugned orders does not arise. They stand disposed of accordingly. 14. The dismissal of the execution petition will not come in the way of the respondent-decree holder in obtaining a necessary Certificate of Transfer and execute the award at Mysore Court. All the three petitions stand disposed of accordingly. Sd/- Judge Nsu/-